The Circle Property Owners' Association, Inc. v. Circle One Condominium Association, Inc., a Florida not-for-profit corporation

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
THE CIRCLE PROPERTY OWNERS’ ASSOCIATION, INC.,
Appellant,
v.
CIRCLE ONE CONDOMINIUM ASSOCIATION, INC., a Florida not-for-
profit corporation, et al.,
Appellees.
No. 4D13-3817
[March 25, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jack Tuter, Judge; L.T. Case No. 09-33451 CACE.
Gerard S. Collins and Jeffrey D. Green of Kaye Bender Rembaum, P.L.,
Pompano Beach, for appellant.
Christian Rodriguez and Israel Reyes of The Reyes Law Firm, P.A., Coral
Gables, for appellee Caridad A. Ortega.
PER CURIAM.
We affirm the judgment awarding attorney’s fees to the receiver of the
appellant’s condominium community, with the exception of a duplication
of fees for representation in settlement negotiations. In the settlement
agreement, the parties agreed to a fee of $3,951 as attorney’s fees for the
services performed by appellee’s attorneys. In the billings presented at the
hearing on attorney’s fees, there appears $5,250 for the same services. We
remand for the court to reduce the judgment by $5,250. We reject the
remaining arguments as either not preserved or raising issues within the
sound judicial discretion of the trial court.
Affirmed in part; remanded for further proceedings in accordance with
this opinion.
MAY and GERBER, JJ., concur.
WARNER, J, concurs in part and dissents in part.
WARNER, J., concurring in part and dissenting in part.
Appellant, a condominium master association, appeals an order
awarding attorney’s fees to its receiver. In addition to remanding to correct
the apparent duplication of fees, I would reverse the order awarding fees
to the receiver’s attorney, because the trial court did not make any
findings, nor did the expert testify, that the fees were incurred to benefit
the estate. Lewis v. Gramil Corp., 94 So. 2d 174, 176 (Fla. 1957) (in seeking
compensation and fees, burden is on receiver to show benefits to
receivership estate); In re Fredcris, Inc., 108 So. 2d 901, 904 (Fla. 3d DCA
1959) (receiver is entitled to fees for benefiting the estate but not in
defending its own actions). Instead, the expert opined that the fees were
reasonable because the receiver required the services: “[I]f the receiver
after that date was making requests on counsel, I believe it’s reasonable
for counsel to perform those tasks.” In other words, the expert testified,
and the court agreed, that because the receiver was requiring legal services
from her attorneys, it was reasonable for the attorneys to perform them.
That is not the test, however. The question is whether the legal service
performed constituted a benefit to the estate. Based upon this record,
much of the fees appear to be defending the receiver from various attacks,
which would not benefit the estate. I would therefore reverse on this issue
also and remand for the trial court to make a determination of which
services benefited the estate.
* * *
Not final until disposition of timely filed motion for rehearing.
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